First Edition of "Civil Liberty" Newsletter (2/2)

From           rplotkin@acs-mail.bu.edu (Robert Plotkin)
Organization   Boston University School of Law
Date           13 Jan 1996 21:06:26 GMT
Newsgroups     alt.society.civil-liberties,alt.society.civil-liberty,comp.org.eff.talk
Message-ID     <4d96si$9h4@news.bu.edu>

Civil Liberties in the News
excerpted from recent ACLU National Office press releases

ACLU Says that FBI Proposal on Wiretapping Would Make the KGB Look Like

Privacy Advocates

Washington - The ACLU today emphatically urged the FBI to withdraw its
proposal for greatly increased wiretapping powers.

	"Given the government's own statements on the usefulness of
wiretaps, we can only guess at the FBI's motives," said Laura W. Murphy,
Director of the ACLU's National Washington Office.  "But if Congress
were to allow this system to go into place, we'd have a national
surveillance apparatus that would pale in comparison to the infamous
security state of the former Soviet Union.
	"This proposal," Murphy added, "would make the KGB look like
privacy advocates."
	The FBI, according to the proposed regulations issued on October
16, has proposed a wiretapping system that would allow law enforcement
officials to monitor as many as one out of every 100 phone lines
simultaneously.  It would, the ACLU said, vastly exceed the current
needs of law enforcement.
	"This proposal would dramatically reduce the privacy rights in
the United States because it would no matter what the Justice Department
says, result in significant increase in the number of innocent third
party conversations intercepted by law enforcement officials," Murphy
said.  "Already too many innocent conversations - nearly two million in
the last year alone - are intercepted by federal and local law
enforcement wiretaps.
	"According to the government's own statistics," Murphy added,
"we already have 1,800 innocent conversations intercepted each and every
time a wiretap or other form of electronic surveillance is placed."
"Now is the time for the Justice Department and Congress to study ways
of controlling police powers, not dramatically expanding them."

ACLU Commends Senate Vote on Abortion Procedure: Urges Senators to
Ultimately Defeat Ban

Washington - The American Civil Liberties Union commended the Senate
today for sending back to committee the so-called "Partial Birth
Abortion Ban Act."
	"Cooler heads have prevailed and stopped the headlong rush to
enact a dangerous bill that would severely threaten all women's
reproductive rights," said Elizabeth Symonds, ACLU Legislative Counsel.
	When the House of Representatives passed its version of the ban
last week, it was the first time that Congress had voted to ban a type
of abortion since the historic Supreme Court decision in Roe v. Wade
over twenty years ago.
	The proposed ban would impose criminal and civil penalties on
physicians who performed a particular type of abortion procedure known
as "intact dilatation and evacuation (intact D&E or D&X)."  The
technique has been sensationalized by anti-abortion advocates who
inaccurately refer to the surgery as a "partial-birth" abortion - a term
unknown in the medical community and invented solely for this
legislation, Symonds said.
	This surgical procedure is used only in rare cases, roughly 450
times per year.  It is most often performed in the case of wanted
pregnancies gone tragically wrong, when a family learns late in
pregnancy of severe fetal anomalies or a medical condition that
threatens the pregnant woman's life or health.  Restricting surgical
options in these cases would only make tragic situations worse.
	Expert in reproductive medicine have stated that if this
legislation is enacted it will make doctors unwilling to perform any
abortion after the first trimester, by any method, for fear of being
prosecuted or sued for malpractice.  It is unprecedented and
inappropriate for Congress to legislate the type of surgical procedure
that a physician may or may not use in a particular case.
	"We are relieved that the Senate has refrained from passing
legislation with complex medical and legal implications without even so
much as a hearing," Symonds concluded.

ACLU Asks U. S. Supreme Court To Extend Free Speech Protection To
Vietnam veteran Who Reveres The American Flag

Pittsburgh - The American Civil Liberties Union has asked the U.S.
Supreme Court to rule that a retired Army Major and Vietnam veteran who
refuses to wear a mandatory American flag patch on his State corrections
officer uniform, for reasons of patriotism and reverence for the flag,
is entitled to constitutional protection.
	Affirming a lower court decision, the U.S. Court of Appeals for
the Third Circuit ruled on September 13, 1995 that the Correctional
Officer's claim is not covered by the First Amendment. (Dieter H.M.
Troster v.  Pennsylvania State Department of Corrections, et al., No. 94-3162.)
	Mr. Troster is a combat veteran of Vietnam and the United States
Army's 82 Airborne Division.  Shortly after receiving an honorable
discharge from the Army, Troster began working as a Correctional Officer
in the Pennsylvania Department of Corrections ("DOC"), eventually
earning promotion to the level of sergeant.
	The ACLU filed a civil rights suit arguing that the First
Amendment protected Mr. Troster from being compelled to wear the flag.
In the words of the appeals court,
	"[Mr.] Troster objects to being compelled to display the
American flag.  He believes that state-compelled display desecrates the
flag and debases it.  Troster considers the required displays deeply
objectionable, because of his conviction that the American flag
symbolizes freedom from state-coerced political or patriotic speech."
	Nevertheless, the court agreed with the federal district court
that Mr.  Troster's right of conscience was not covered by the First
Amendment because his refusal to wear the flag patch was not
"sufficiently imbued with elements of communication...."  The court
concluded that, "sympathetic as we may be to Troster's genuine
patriotism as well as with his predicament, we cannot accept his
suggestion that we hold, as a matter of `common sense' and law, that the
mere act of wearing a uniform with a flag patch on it constitutes an
expressive or communicative `use' of the flag."
	 The ACLU's petition asks the Supreme Court to consider whether
the compelled flag display "constitutes compelled expressive conduct
subject to First Amendment scrutiny."  The ACLU suggests to the Court
that the case presents an opportunity to define when expressive conduct
falls within the 1st Amendment.  The Court has never articulated a test
to determine this issue, leaving public employers, citizens and
reviewing courts to guess about whether particular conduct is subject to
First Amendment review.  As a result, appeals courts have reached
incompatible conclusions, with the Third Circuit in this case holding
that wearing an American flag patch on a uniform is not expressive
conduct while other federal appeals courts have held the reverse.  Just
last year the Eighth Circuit held that a Missouri firefighter who donned
the American flag on his uniform as a sign of support for the Persian
Gulf war was engaged in expression under the First Amendment.
	The Supreme Court is expected to decide later this year whether
to review the appeals court decision.

ACLU to file Suit Challenging D.C. Curfew Law

 	On Thursday, November 2, 1995, the American Civil Liberties
Union of the National Capital Area will file a class-action lawsuit
against the District of Columbia challenging the D.C. juvenile curfew
law on the grounds that it violates the First, Fourth, and Fifth
Amendments to the U.S.  Constitution.
	The plaintiffs in the case are eight young residents of D.C.,
four parents, and one local business.  The suit will be filed in federal
district court in the District of Columbia.
	The D.C. curfew law prohibits young people under age 17 from
being in any public place or private establishment between 11 p.m. and 6
a.m. on weekdays, and between midnight at 6 a.m. on weekends.  The law
permits police officers to stop any young person and demand to know his
or her age and reason for being out during curfew hours.  If the officer
"reasonably believes" that a young person is violating the curfew, the
individual may be arrested and detained.  A young person's parents may
also be punished for their child's curfew violations.
	The plaintiffs and the ACLU allege that the curfew law is
unconstitutional because it infringes on the 1st Amendment rights of
young people to engage in free speech or association.  It also
authorizes police officers to arrest young people without probable
cause, although the 4th Amendment requires probable cause before an
arrest can be made.  And it usurps the constitutional rights of parents
by preventing them from making their own decisions about appropriate
curfew hours for their own children.  The curfew law is also
unconstitutional because it prohibits ordinary, harmless activities such
as walking the dog or speaking with a neighbor on the sidewalk.
	For example, plaintiff Tiana Hutchins is a sixteen-year-old D.C.
resident who was stopped by a police officer for a possible curfew
violation while standing in front of her own home talking with a friend.
She explains that she and many of her friends oppose the curfew because
"it is unfair to punish good kids who are out trying to make something
of themselves when only a small percentage of young people are
committing crimes in the city during curfew hours."

ACLU Opposes National ID System and Computer Registry

Washington - A number of immigration bills (including S.269 and H.R.
2202), and the Commission on Immigration Reform have proposed that the
United States adopt a computer data base of every person in the United
States to verify whether the person is eligible to work or is eligible
for certain benefits.
	In addition to legislative attacks on the due process rights of
aliens, this idea is one of the most controversial proposals considered
by Congress in the area of immigration.  It would make citizens, as well
as aliens, pay a huge price in terms of privacy.
	"The national identification system is an idea whose time has
definitely not come," said ACLU Legislative Counsel Gregory T. Nojeim.
Adoption of a system that could track the employment of every person in
the country, not just aliens, is not the way to deal with illegal
immigration.  The notion that an employer would have to get permission
from a data base maintained by the Federal government to hire a person
is a radical notion indeed.
	"A national data base and ID system raises grave concerns about
invasions of privacy and personal freedom and would be fraught with
practical problems," Nojeim continued.  Even if such a system could be
maintained with an error rate of only 1%, hundreds of thousands of
Americans would be denied employment opportunities annually when as a
result of an error in the data base, they were deemed ineligible to
work.  Moreover, no system can be entirely free from abuse - even the
Pentagon's files have been accessed without authorization."
	"These proposals would make workers in the U.S. human guinea
pigs in pilot programs designed to test the national identification
system.  The proposed test projects are merely launching pads for a
national computer registry and de facto ID system.  The adoption of such
a system will almost inevitably lead to the adoption of a national
identification card," he said.

ACTION ALERT on Federal Online Indecency Legislation

	The conference committee on the telecommunications bill will
soon consider whether to remove provisions that would make "indecency" a
crime in cyberspace.  On Monday, November 6, we distributed an action
alert urging individuals to call Congress to express opposition to any
measures to censor the Net.
	This may be your last chance to stop unconstitutional
restrictions on your right to free speech in cyberspace!!
	In addition to the call to action for individual Net users, the
ACLU and People for the American Way obtained signatures from over 75
organizations to a letter opposing the federal online indecency
provisions.  The letter will be sent to Senator Pressler and
Representative Bliley on the conference committee later this week.
	The ACLU continues to prepare for a constitutional challenge to
the online censorship provisions if they become law.  Please contact Ann
Beeson, beeson@aclu.org, if your organization is interested in being a
plaintiff in this ground-breaking litigation that will define First
Amendment rights in cyberspace.
	Editor's Note: Please call House Speaker Newt Gingrich and
Senate Leader Bob Dole and voice your opposition to the Communications
Decency Act.  Gingrich can be reached at: 202-225-4501 (voice), or
202-225-4656 (fax).  Dole can be reached at 202-224-6521 (voice), or
202-224-8952 (fax).

ACLU Supreme Court Preview

Washington - The disappointing end of last year's Supreme Court term is
a cause for anxiety as this year's term begins.
	Following its recent pattern, the Court's opening docket this
year is relatively small, with only 39 carryover cases.  But, in
contrast to last year, the docket already includes a number of
significant cases involving voting rights, gay rights, and prisoners'
rights, among other things.
	There is little doubt that the Court remains closely divided on
these issues.  Based on last year's record, it also appears to be more
ideologically polarized than many had thought.  By the conclusion of
this year's term, we should have a much better sense of whether the
Court's renewed enchantment with state's rights and federalism will once
again be used to promote an anti-civil rights and civil liberties
agenda, as it has so often in the past.
	The stakes are high.  Echoing the anti-Washington fervor that is
now so prevalent in the political arena, some of last year's more
expansive opinions called into question the very basis of the federal
government's authority to address the persistent inequalities that still
plague our society.

-----
Funded Student Speech
by Chris Jones
	Student groups and organizations have always been a source of
discussion and controversy within university campuses.  Many groups see
their role as one of provoking robust debate on important social issues
in the intellectual safe-harbor of the university.  Recently, however,
the controversy has spilled over into federal courtrooms.
	In Smith v. Regents the Ninth Circuit Court of Appeals
considered a First Amendment claim from a group of students at the
University of California at Berkeley who objected to their student
activities fee being used to fund what can generally be called "liberal"
student organizations.  The argument was essentially one of compelled
association - the students objected to being forced to financially
support speech with which they did not agree.  Although other circuit
courts had rejected similar claims, the court set its own course and
held that students cannot be compelled to subsidize "ideologically
oriented" student groups.  While the Supreme Court has not yet addressed
this issue, in a recent case, Rosenberger v.  Rector and Visitors of the
University of Virginia, all four opinions referred to the possibility of
such a First Amendment challenge to the activities fee at issue and some
justices seemed to get implicit approval to the claim.
	The implications of this policy are far ranging and could
effectively destroy the atmosphere of academic discussion.  Procedural
difficulties would be endless.  The university would have to decide
which groups are so "ideologically oriented" that they must forfeit
their right to student funds.  In the absence of such a decision by the
university, students could have the option of withholding a pro-rata
portion of their fee from groups with which they ideologically disagree.
It's uncertain how this could be carried out.  Would the fee be
allocated to all groups unless the student indicated any groups that
should not receive any part of his or her fee?  Or perhaps no groups
except for the ones specifically indicated by the student should receive
any portion of the fee?  Under either of these schemes, will groups be
allowed to conduct information campaigns so that students can make well-
informed decisions in allocating their student activity dollar?  What if
all students just decided they would rather save the money and not
support any student activities?
	Then there would be the additional problem of preventing the
policy from spreading uncontrollably.  Perhaps the next challenge will
come from a student who would like a pro-rata refund of that portion of
his tuition that pays the salary of a professor who teaches feminist
theory.  Most would cringe at the thought of this claim succeeding, but
it's difficult to distinguish the two situations.
	The real tragedy is that the practical effect of the Smith
ruling would be to silence meaningful student speech altogether.  Bland,
neutral groups would presumably meet the requirement that groups should
not be ideologically oriented.  But once the group or its activities
took a position or advocated change of the status quo, funding could be
withdrawn.  Even if universities give students an option for allocating
or withholding their activities fee, only noncontroversial groups would
survive.  The result is blatant viewpoint discrimination.  Groups can
participate in the university's speech forum only if they don't have an
"ideological" viewpoint.
 	None of this advances the educational mission of the university.
The Smith court reached its decision by analogizing student activities
fees to union fees or bar membership dues.  In those instances, the case
for compelled association was much stronger because the purpose of the
organizations could be distinguished from any ideological activity in
which they sought to engage.  Universities, on the other hand, should
promote the fullest exchange of ideas and information.  While academic
life undoubtedly provides much of this exchange, extracurricular
activities supplement the debate and discussion.
	Allowing free, uninhibited discussion will not mean losing all
control of one's activities fee altogether.  Students can maintain
control over funding decisions through student governments, which
usually have a role in appropriating activities fees, rather than
categorically denying funding to ideological groups.  As long as the
university has clear guidelines for determining what activities are
eligible for funding, and as long as these guidelines do not
discriminate on the basis of viewpoint, student representatives can make
intelligent funding decisions for the entire student body.
	One of the underlying premises of freedom of speech is that many
voices expressing many ideas serves society better than silence.
Apparently a small group of Berkeley students disagree with that
philosophy and would rather silence speech rather than countering it
with opposing ideas.

-----
Killing Time
by Peter Vickery

	Back in July, Governor Weld's death penalty bill was defeated in
the House by just ten votes, down from a margin of sixteen the previous
year. But since it's a Governor-sponsored measure, that's not the end of
the line, and the November 1996 elections could encourage the Senate to
breathe new life into the bill.
	During the summer, a South Hadley police officer filed a
petition for an initiative question on the ballot to establish the death
penalty.  Because laws dealing with "the powers of the court" are not
suitable for the ballot the American Civil Liberties Union (ACLU) of
Massachusetts was able to persuade the Attorney General that the matter
should not go forward.
	Why are the Governor and his supporters so keen to bring
judicial killing to Massachusetts, and why should we oppose them?
	To take the arguments of death penalty advocates at face value
and to critically assess the relative merits of each is to miss the
point of their cause. In Albion's Fatal Tree, D. Hay examines the
function the death penalty played in England during the 18th and 19th
Centuries, concluding that it helped re-inforce deference and formed
part of the currency of patronage.  During the period in question,
execution was the sentence for a whole range of crimes against property
but the number of actual executions was comparatively low.  Hay suggests
that terror alone could not maintain social order (regular mass hangings
would probably incense the populace rather than subdue them).  Capital
punishment had to be tempered with mercy in order to "mold the
consciousness by which the many submitted to the few."
	It is time to examine the broad political role of the death
penalty in the United States of the late 20th Century.  The debate about
the death penalty is one of the signals in the US's coded political
discourse on wealth and race so to argue the relative merits of judicial
killing on the premises set forth by its advocates is futile.  But it is
useful to note the flimsiness of the death penalty-advocates' main
argument, namely that execution deters homicide.
	One cannot tell from the statistics whether countries with the
death penalty have lower incidences of homicide than those without.
Nigel Walker was Director of the Institute of Criminology and Professor
of Criminology at Cambridge University, and founded the Oxford Centre
for Criminological Research.  He uses New Zealand as an informative
death penalty case study;
	"[between 1924 and 1962] the death penalty was in force, then
abolished, then revived, then in abeyance, then abolished again ... As
was to be expected with small numbers [of New Zealanders] the murder
rate fluctuated.  But the fluctuations bore no discernible relationship
to the status of the death penalty; one cannot tell from them when it
was in force and when it was not."  Why Punish? (OUP 1991)
	The FBI Uniform Crime Reports Division publication, "Crime in
the U.S.", shows that states without the death penalty averaged 4.9
murders per 100,000 while states with the death penalty averaged 7.4
murders.  One study found an increase in homicide during the sixty day
periods after executions.  (Capital Punishment and the American Agenda,
at 174).  The deterrence theory is at best ambiguous and cannot, of
itself, explain the zeal and determination of death penalty proponents.
What then is their goal?
	The statistics contained in the Staff Report by the House
Judiciary Committee's Subcommittee on Civil and Constitutional Rights
(March 1994) provide some clues.
	"Analysis of prosecutions under the federal death penalty
provisions of the Anti-Drug Abuse Act of 1988 reveals that 89% of the
defendants selected for capital prosecution have been either
African-American or Mexican-American ... Throughout American history,
the death penalty has fallen disproportionately on racial minorities.
For example, since 1930 nearly 90% of those executed for the crime of
rape in this country were African-Americans.  Currently, about 50% of
those on the nation's death rows are from minority populations
representing 20% of the country's population."  (Racial disparities in
federal death penalty prosecutions 1988-1994).
	Do these figures simply show that our legal institutions happen
to be staffed by bigots, or is there another explanation, one that
rationally addresses the interplay of race, wealth and the law?
	Other political organizations do not have the lawful right to
kill people, only the organization we call "the state".  Capital
punishment, like war, elevates the state to the role of ultimate arbiter
of life and death.  When opponents of those in power challenge the
authority of the state, they do so with the knowledge that the law
recognizes the right of the state to kill its own citizens.  This is a
major psychological disadvantage to the opposition, and a valuable
advantage to those in power.  When this "right" is exercised it instills
awe and fear, reminding us who's in charge.  In this sense, the death
penalty advocates' deterrence theory is not so far off the mark; the
death penalty deters us from thinking we're up to challenging the power
of the state.
	The truism that power corrupts applies even in a democracy such
as the United States, and the power of life and death is more corruptive
than the power to, say, raise taxes.  The following case illustrates the
fact.  Mumia Abu-Jamal is a politically active African-American
journalist, sentenced to death for the murder of a Philadelphia police
officer.  The case against Abu-Jamal rested on three points; that three
"eye-witnesses" say they saw him commit the crime, that he confessed to
shooting Officer Faulkner and that his legally owned gun was the murder
weapon.
	The star witness, Cynthia White, is the only witness who claimed
Abu-Jamal had a gun in his hand.  Other witnesses say she was not even
there, and although Ms. White had been arrested thirty eight times for
prostitution her voluntary co-operation with the police resulted in her
enjoying the privilege of continuing her work with the protection of a
plainclothes police detail.  The second witness, Robert Chobert,
initially described the gunman running away from the crime-scene;
Abu-Jamal was in no condition to run anywhere as he was lying on the
ground with a police bullet in his abdomen.  Chobert changed his story
at the trial, insisting that Abu-Jamal was the shooter.  Mr Chobert was
on probation at the time, under court supervision, for firebombing a
school.
	The third witness, Mark Scanlan, admitted to having been
drinking on the night in question, stated that he had seen Abu-Jamal
driving a Volkswagen automobile (the police agree that Abu-Jamal's
brother was the driver) and contradicted the police version of events
which holds that Officer Faulkner fell down after being shot.
	The supposed confession was allegedly recorded by Officer Gary Wakshul
who was with Abu-Jamal continuously after his arrest.  In his official
report, Officer Wakshul wrote that Abu-Jamal made no statement the night
he was shot and arrested.  As an injured Black man at the scene,
Abu-Jamal was assumed to be the perpetrator, arrested, thrown into a
paddy wagon and driven around for a while in the expectation he would
bleed to death.  Not surprisingly, he filed police brutality charges.
	"Mumia Abu-Jamal's case highlights the function of the death
penalty which its more astute proponents find most attractive: deterring
not murder, but unorthodoxy."
	The police then claimed that Officer Bell (the slain officer's
partner) and a hospital security guard had heard Abu-Jamal confess to
the killing.  Neither they nor Officer Wakshul had reported this and
seem to have treated the alleged statement as a secret for several
months.  Officer Wakshul said he was too upset to report it at the time
and testified that the officers involved in the case had met with the
prosecutor; when asked if the purpose of the meeting was to get their
stories straight, Officer Wakshul said he couldn't remember.  At full
trial, Abu-Jamal tried to subpoena Wakshul but the judge announced the
officer was "on vacation" and denied Abu-Jamal's motion to postpone the
trial for a few days until he returned.
	As for the ballistic evidence, the prosecution stated that the
bullet removed from Officer Faulkner was too badly damaged to be
identified.  The police did not test Abu-Jamals hands or clothing to
check whether he had fired the weapon.  They did not even check the
weapon itself to ascertain whether it had been fired.  The medical
examiner thought the slain officer's wounds came from a larger caliber
gun and the angle at which Abu-Jamal was shot means he could not been
standing over Officer Faulkner as the prosecution claimed (the bullet
entered Abu-Jamal from above, passed down through his lung and into his
abdomen).
	On such dubious evidence Mumia Abu-Jamal was sentenced to death.
The United States Supreme Court refused to hear the case, although the
prosecution had introduced as evidence Abu-Jamal's previous membership
of the Black Panther Party as well as his written and spoken political
opinions.  In Dawson v. Delaware (1990), the Supreme Court had
overturned Dawson's execution because the prosecution in that case had
introduced as evidence the fact that Dawson was a member of the "Aryan
Brotherhood" and had swastikas tattooed on his body.  The Court
concluded that this violated Dawson's First Amendment rights.  The
contrast is disturbingly obvious.
	Mumia Abu-Jamal's case highlights the function of the death
penalty which its more astute proponents find most attractive; deterring
not murder, but unorthodoxy.  Of course not all the inmates of America's
death rows are radical Black political activists framed by the police.
But the majority are African-American men whose alleged victims were
white.  With the institutions of government sending a message so loud
and clear, there is no need to round up the "agitators".  To introduce
the death penalty to Massachusetts would be to signal a major shift in
power towards the state, the power to stifle dissent and further
intimidate minorities.  This is an age when mainstream politicians
constantly declare that whatever the problem, the answer is always to
increase the power of the already powerful.
	If the death penalty comes to Massachusetts, its frontline
victims will be the poor, especially poor non-whites.  At least 416
people have been `wrongly' convicted of capital crimes in the U.S. since
1900; Massachusetts was responsible for at least 14 of these
convictions. Radelet, Bedau & Putnam, In Spite of Innocence,
Northeastern University Press (1992).  The death penalty advocates claim
that `innocent victims' are the unfortunate but inescapable price of
deterrence and righteous revenge.  But deterrence is a sham, and as for
righteous revenge, demanding a life for a life is a unique and
unjustifiable exception to the rule that the punishment for crime is
imprisonment.
	Decoding the death penalty debate reveals the desire of the
powerful elements in American society to stamp their authority ever
harder into the minds of the public.  The judicial lynching of minority
males feeds and reinforces the racism that pits governed against
governed, distracting them from the real causes of violence and
brutality, and the bread-and-butter issues that politicians would rather
not address.  It is a form of state-sponsored terrorism, and its victims
are ordinary Americans.